Custody - Usual Arrangements

Question:

I am about to get divorced and want some idea of the usual custody and visitation arrangements that parents or courts make.

Answer:

Custody and visitation arrangements vary from family situation to family situation and can be tailor-made to maximize suitability. The parents can agree in advance on which of them the child/ren will live with and how much the other parent will see them and where. They can  work out a personal  package in the form of a written agreement, and ask the court to authorize it. Failing this, one, or both parents, will sue for custody, and the court will decide.

As  a general rule, one parent will get sole custody and the other parent will get visitation rights (also known as 'contact' or 'access'), whatever the process.  The parent with whom the child lives is known as the 'custodial parent' or 'custodian' and the other parent is known  as the 'non-custodial parent'. Joint or mutual custody is the exception.

Usually, but not necessarily, mothers are awarded  custody of younger children, if they are the sole or primary caregiver , and are normative, with adequate parenting ability and skills.  This pattern usually carries on, as it is usually considered preferable for the parent who is  primary caregiver to continue as custodian , at least until the minors are teenagers. The  non-custodial parent (usually the father) will usually  see the child once or twice during the week for a few hours each time, outside of the custodial parent's home, and every other weekend, usually including overnight, at the non-custodial parent's home. Festivals are usually alternated between parents so that one year a child will spend one festival with one parent and the next with the other one. Phone access is usually very liberal.

Sometimes, there are clear situations where the father, and not the  mother, has been the de facto primary caregiver, or has clearly superior parenting ability and skills and availability. In such cases the father could have a good chance of winning custody  should he apply for it, if the reports ordered by court also reflect this.

Often, within legal proceedings,  a professional is appointed by the court to make  recommendations regarding custody and visitation rights. The court can also delegate its powers to that professional to make decisions during the legal process, and even at the end of the case, and rule on disputes between the parents, rather than it having to deal with every problem, thus saving both time and money. Parents still retain the right to go to court if they the professional cannot resolve the issue to their satisfaction.

Case :

My wife and I are in a divorce battle . I want custody of our son, but not our daughters. Is it possible that the court would rule this way ?

Answer:

As a rule of thumb, courts do not split up siblings unless there is an exceptional reason for doing so. Unless special reasons are claimed, and proved to the satisfaction of the court, it is likely that a plea for custody of only one of the siblings will not succeed.

Question:

In what circumstances is a plea for joint custody initiated by the father likely to succeed ?

Answer:

Such a plea is uncommon, and joint custody is only rarely awarded, in very special circumstances. It is likely to succeed after the court regards this to be in the minor/'s good after the report and recommendations of a professional/s on the issue has been received. The factors to be taken into consideration includes the father’s parental capability ( as well as the mother’s), the degree of co-operation between the parents, how close they live to one another, the minor's’s viewpoint (depending on age/maturity), and any special reasons for custody being joint . In general the court will want to avoid putting a minor in a situation which could confuse him/her and create harmful internal conflict resulting from continuous exposure to mixed parental messages. Hence, joint custody requires great parental commitment and a high degree of co-operation over parenting.

Question:

Can parents agree on custody arrangements that suit them or must they accept a set format given by a court ?

Answer:

Yes, parents can agree on custody and visitation arrangements that suit them, in the form of a written agreement, and ask the court to authorize them, and pass judgment, giving them maximum legal validity. The court can , however, refuse to authorize terms agreed upon in writing by parents that it considers are  not in the child's good, or unfairly compromise the legitimate rights of one parent, or of  the child.

Question:

What implications could there be for both parents if a mother with custody makes an informal arrangement with the separated father whereby their mutual child can live with him ?

Answer:

This situation relates to two legal factors – transfer of custody and reduction in maintenance – which , according to law, should be authorized by court. A custodial parent (here, the mother) and the non-custodial parent can reach informal agreement for their mutual child to live with the father. The law does not forbid them from doing so. However, if they do not formalize this by gaining court approval, it is not binding, and each side is potentially exposed to legal proceedings

For example, if the mother changes her mind later on, and wants the child to live with her again, the father is at risk , if she chooses to exploit the situation. The mother could complain to the police that the father removed the child from her custody, and could even file at the bailiff's office to enforce a maintenance judgment she may have to get unpaid sums…. even if the child had actually been living with the father. On the other hand, the mother might not have intended to actually agree to a permanent switch, but just to a temporary arrangement, and could be risking losing custody later on, as the father could actually file for custody and a reduction/exemption from maintenance .

If the child is aged 10 or over, his opinion about which parent he would like to live with will probably be regarded by court as important, and can help the court understand the whole situation.